David Bixby v. Chatham, Town of (SPR 20192479)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 27, 2019 SPR19/2479 Terence M. Whalen, AICP Principal Projects and Operations Administrator Town of Chatham 221 Crowell Road Chatham, MA 02633 Dear Mr. Whalen: I have received the petition of David Bixby appealing the response of the Town of Chatham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bixby requested "a copy of the address listing of based aircraft owners as referenced in Chapter 4 Scope of the [Airport Master Plan Update]." The Town responded on December 5, 2019, providing a partially responsive record. Unsatisfied with this response, Mr. Bixby petitioned this office and this appeal, SPR 19/24 79, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. G. L. c. 66, § lO(b)(iv). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Terence M. Whalen SPR19/2479 Page 2 December 27, 2019 Current Appeal The Town's December 5th Response The Town responded to Mr. Bixby on December 5, 2019, producing a list of based aircraft broken down by zip code, town, and county. The Town also states: "GALE Associates notes only zip code information was provided verbally by the Airport Manager." In his December 13th appeal petition, Mr. Bixby claims that the Town possesses additional records responsive to his request, stating that "it is a fact that the airport manager in Chatham has a record of every aircraft based at the airport." He notes that in the Airport Master Plan Update, "[t]he agreed upon scope of services called for the town to provide the consultant with 'an address listing of based aircraft owners."' Further, Mr. Bixby indicates that "Massachusetts state law c. 90 requires the airport to annually provide a listing of based aircraft." Additional Responsive Records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 1O (a)(ii). A records access officer must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § lO(b)(vii). Based on Mr. Bixby's petition and the Town's response, it is unclear whether the Town possesses additional records responsive to Mr. Bixby's request. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide a response to Mr. Bixby consistent with this order, the Public Records Law, and its Access Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~. Rebecca S. Murray Supervisor of Records cc: David Bixby